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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-11941 ________________________
D.C. Docket No. 5:14-cv-00540-AKK
GARY VOKETZ, for himself and on behalf of the citizens of Decatur, Alabama, and the State of Alabama,
Plaintiff - Appellant,
versus
DECATUR, ALABAMA, CITY OF, the; a municipal corporation, CITY COUNCIL OF DECATUR, THE, DON KYLE, ROGER ANDERS, BILLY JACKSON, et al.,
Defendants - Appellees,
AL ROBINSON, DORIS A. BAKER, DR. SAMUEL T. KING, ANNIE R. PRIEST, Case: 17-11941 Date Filed: 09/13/2018 Page: 2 of 18
Intervenors Defendants - Appellees.
________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________
(September 13, 2018)
Before TJOFLAT and JULIE CARNES, Circuit Judges, and BLOOM, * District Judge.
JULIE CARNES, Circuit Judge:
In 2010, Decatur residents passed a referendum to change Decatur’s form of
government, including how the city council was elected. City officials, however,
decided not to implement the referendum because they believed doing so would
violate § 5 of the Voting Rights Act. Gary Voketz filed this lawsuit in 2014 to
compel Decatur to implement the referendum. The City and its current
councilmembers again contend that they cannot do so because it would violate § 5.
After initially denying the defendants’ motion for summary judgment based
on § 5, the district court reversed itself and granted summary judgment. We
disagree with the court’s second decision. By striking down § 4(b)’s coverage
formula that defined the jurisdictions to which § 5 applies, the Supreme Court’s
* Honorable Beth Bloom, United States District Judge for the Southern District of Florida, sitting by designation.
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decision in Shelby County v. Holder, 570 U.S. 529 (2013), rendered § 5
inapplicable to Decatur. Thus, § 5 does not prohibit Decatur from implementing
the referendum and reforming its government now, in 2018. Accordingly, we
REVERSE the district court.
I. BACKGROUND
A. Factual Background
In 2009, Voketz, a Decatur resident, began circulating a petition for a
referendum to change the form of government of Decatur, Alabama. Decatur had
redrawn its voting districts in 2004 to comply with the Voting Rights Act. By
doing so, the City freed itself from a 1988 consent decree that governed its
electoral procedures. Given this new freedom, Voketz sought a referendum to
change Decatur’s form of government from mayor-council to council-manager.
At the time Voketz began circulating his petition, Decatur’s mayor-council
government was led by a mayor elected at large and five city councilmembers
elected from single-member voting districts. One of the five councilmember
voting districts had a black voting-age majority.
Voketz’s referendum to change to a council-manager government would
retain the five-member city council but would modify how those members were
elected. Instead of all members being elected through single-member voting
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districts, two members would be elected at large—one of whom would serve as
mayor. Ala. Code § 11-43A-8. The remaining three councilmembers would be
elected by single-member districts. Id. § 11-43A-9.
Voketz’s efforts were successful, and, in 2010, the referendum passed, and
the residents of Decatur elected to change to a council-manager form of
government.
Drawing new single-member districts that satisfied both federal and state
law, however, put Decatur between a rock and a hard place. Section 5 of the
Voting Rights Act required that Decatur, as a covered jurisdiction, preclear any
changes to its voting laws either with the Department of Justice or by obtaining a
declaratory judgment from the United States District Court for the District of
Columbia. 52 U.S.C. § 10304(a). Without preclearance, § 5 stipulated that
covered jurisdictions like Decatur could not enact or administer any laws that
would have a retrogressive effect on minority voting power—meaning that a
minority population’s ability to elect its preferred candidate could not be
decreased. Id.; see also Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 478 (1997).
Meanwhile, Alabama law required that Decatur’s voting districts “contain[ ]
as nearly an equal number of people as possible.” Ala. Code § 11-43A-9. But,
because of the overall population numbers and geographic spread of Decatur’s
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black voting-age population, the only feasible way (according to the City) to
comply with § 5 and preserve a majority-black voting district was to draw districts
that were greatly unequal in population.
The tension between preserving a majority-black voting district and
equalizing population between the districts proved unworkable. Of the six
potential district maps evaluated by the City, five had maximum population
deviations between districts of 24.09% or more. To comply with Alabama’s equal
population requirement, Decatur adopted the sixth plan that had a population
deviation of only 3.62%. The sixth map, however, required the removal of the
majority-black voting district because, under that map, the district would have only
a 34.96% black voting-age population.
Nevertheless, Decatur submitted the sixth plan to the Department of Justice
for preclearance under § 5 in October 2011. In December 2011, DOJ sent Decatur
a “more information request.” The request informed Decatur that “the information
sent is insufficient to enable [DOJ] to determine” whether the new plan complied
with § 5, and it asked for further documentation and data on voting behavior and
election results. Faced with this request, Decatur determined that the new
information would likely demonstrate that the redistricting plan violated the Voting
Rights Act.
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So, in January 2012, the city council released a resolution declaring that “it
is mathematically impossible for the City to have three single-member voting
districts with each district containing as nearly an equal number of people as
possible that will not have a retrogressive impact on the Black voters of Decatur.”
And, instead of providing DOJ with additional information, the City withdrew the
council-manager districting plan and created a new plan (redrawn to accommodate
the 2010 census) under the original government structure with five single-member
voting districts that preserved the majority-black voting district. DOJ precleared
this new plan, and regularly scheduled elections took place in 2012.
B. Procedural History
In February 2014, Voketz filed this lawsuit in Alabama state court against
the City of Decatur and the city council—Don Kyle, Roger Anders, Billy Jackson,
Charles Kirby, and Charles Ard—(collectively, “Defendants”) seeking declaratory
and injunctive relief to compel Decatur to implement the 2010 referendum and
reform Decatur’s governmental structure. Defendants removed to federal court
and moved for summary judgment on the grounds that “[a] change to the council-
manager form of government and method of electing City officials approved in the
2010 referendum would violate Section 5 of the Voting Rights Act.” The district
court denied the motion and concluded that the Supreme Court’s holding in Shelby
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County v. Holder, 570 U.S. 529 (2013)—which freed Decatur of any obligation to
comply with § 5—applied retroactively, so § 5 posed no barrier to implementation
of the referendum.
After the Supreme Court decided Harris v. Arizona Independent
Redistricting Commission, _ U.S. _, 136 S. Ct. 1301 (2016), Defendants moved for
reconsideration. The district court reversed its initial order and granted summary
judgment to Defendants. Contrary to its initial decision, the court concluded that
Harris demonstrated that Shelby County was not retroactive and that Defendants
thereby had a valid § 5 defense. Voketz filed a timely appeal under 28 U.S.C.
§ 1291.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de novo, viewing all
factual inferences in the light most favorable to the nonmoving party. Greenberg
v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007). To grant
summary judgment, the moving party must show “that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
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III. DISCUSSION
At issue in this appeal is whether § 5 prohibits Defendants from
implementing the 2010 referendum now in 2018. To resolve this, we first examine
the Voting Rights Act and the Supreme Court’s decision in Shelby County.
Section 5 of the Act prohibits only those jurisdictions covered under § 4(b) from
changing their voting procedures without first preclearing the changes. Shelby
County struck down § 4(b)’s coverage formula as unconstitutional. As a result,
there are no covered jurisdictions for § 5 to apply to, so § 5 is functionally
unenforceable.
From this, it logically follows that § 5 does not restrict Decatur’s post-Shelby
County implementation of the 2010 referendum. Because Voketz seeks only to
compel Defendants to implement the referendum going forward, § 5 cannot
prohibit it because § 5 no longer applies to Decatur. And, because Voketz seeks
only prospective relief, Shelby County’s retroactivity is not at issue.
A. The Voting Rights Act and Shelby County We begin by examining sections 4 and 5 of the Voting Rights Act, the
interaction between the two, and how Shelby County’s invalidation of § 4(b)’s
coverage formula impacted § 5.
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1. Sections 4 and 5 of the Voting Rights Act
Sections 4 and 5 of the Voting Rights Act of 1965—as they existed in the
most recent reauthorization of the Act in 2006 1—together prevented covered
political jurisdictions from enacting or enforcing laws that harmed minority voting
rights in certain ways. Section 4(b) contained a coverage formula—a laundry list
of different criteria based off statistics and determinations made about states and
political subdivisions from the 1960’s and 70’s.2 Shelby County, 570 U.S. at 551.
Section 4(b)’s coverage formula determined what jurisdictions were subject to
regulation under § 5. Id. at 550 (“The provisions of § 5 apply only to those
jurisdictions singled out by § 4.”).
Section 5 requires that, for “covered jurisdictions” under § 4(b), “no change
in voting procedures c[an] take effect until it [is] approved by federal authorities in
Washington, D.C.—either the Attorney General or a court of three judges.” Id. at
537. A jurisdiction can obtain this “preclearance” only by demonstrating that the
1 Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act, 120 Stat. 577 (2006). 2 For example, § 4(b) covered “any State” or “political subdivision” that:
the Attorney General determines maintained on November 1, 1964, any test or device [to impair minority voting rights], and . . . less than 50 per centum of the persons of voting age residing therein were registered on November 1, 1964, or . . . less than 50 per centum of such persons voted in the presidential election of November 1964.
52 U.S.C. § 10303(b).
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change neither has a “discriminatory purpose,” nor “diminish[es] the ability of
citizens, on account of race, color, or language minority status, ‘to elect their
preferred candidates of choice.’” Id. at 539 (quoting 52 U.S.C. § 10304).3 This
second requirement—that a voting procedure not have a discriminatory effect—
incorporates a retrogression standard, meaning that changing a voting procedure
violates § 5 only if it “would lead to a retrogression in the position of racial
minorities with respect to their effective exercise of the electoral franchise”
compared to the jurisdiction’s previous election procedures. Reno v. Bossier
Parish Sch. Bd., 520 U.S. 471, 478 (1997) (internal quotation marks omitted); see
also Georgia v. Ashcroft, 539 U.S. 461, 477 (2003) (“[A] voting change with a
discriminatory but nonretrogressive . . . effect does not violate § 5.”).
If a covered jurisdiction does not obtain preclearance for a change to its
voting procedures, § 5 prohibits that jurisdiction from “enact[ing] or seek[ing] to
administer” the change. 52 U.S.C. § 10304(a). In other words, “changes in
election practices are not ‘effective as laws until and unless [they are] cleared
pursuant to § 5.’” McCain v. Lybrand, 465 U.S. 236, 245 (1984) (quoting Conner
v. Waller, 421 U.S. 656, 656 (1975)); see also Clark v. Roemer, 500 U.S. 646,
3 At the time Shelby County was decided, sections 4 and 5 of the Voting Rights Act were codified at 42 U.S.C. § 1973b and § 1973c, respectively. They are now codified at 52 U.S.C. § 10303 and § 10304.
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652–53 (1991) (“If voting changes subject to § 5 have not been precleared, § 5
plaintiffs are entitled to an injunction prohibiting the State from implementing the
changes.”).
Section 5’s preclearance requirements and prohibitions are thus dependent
on § 4(b)’s coverage formula. Shelby County, 570 U.S. at 550. Because § 5 only
applies to the jurisdictions identified in § 4(b), it becomes toothless without it. See
id. at 559 n.1 (Ginsburg, J., dissenting) (“[W]ithout [§ 4(b)’s] formula, § 5 is
immobilized.”).
2. Shelby County held § 4(b)’s coverage formula to be unconstitutional, rendering § 5 inapplicable
The Supreme Court held in Shelby County that § 4(b)’s coverage formula
was unconstitutional. Under the Fifteenth Amendment, “a statute’s ‘current
burdens’ must be justified by ‘current needs,’ and any ‘disparate geographic
coverage’ must be ‘sufficiently related to the problem that it targets.’” Shelby
County, 570 U.S. at 550–51 (quoting Nw. Austin Mun. Util. Dist. No. One v.
Holder, 557 U.S. 193, 203 (2009)). In Shelby County, the Court observed that,
although § 4(b)’s coverage formula was constitutional when first passed in the
1960’s, “[t]here is no denying . . . that the conditions that originally justified these
measures no longer characterize voting in the covered jurisdictions.” Id. at 535.
Congress’s failure to update the formula “ignore[d]” recent positive developments
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in voting rights and instead “ke[pt] the focus on decades-old data relevant to
decades-old problems, rather than current data reflecting current needs.” Id. at
553. Thus, because § 4(b) triggered heavy preclearance burdens under § 5 based
on forty-year old information that no longer reflected modern reality, the Court
“declare[d] § 4(b) unconstitutional” and held that “[t]he formula in that section can
no longer be used as a basis for subjecting jurisdictions to preclearance.” Id. at
557.
Although the Court “issue[d] no holding on § 5 itself,” id., § 4(b)’s
invalidation effectively brought § 5 down with it. Section 5’s preclearance
requirements no longer apply because, without § 4(b)’s coverage formula, there are
no covered jurisdictions for § 5 to apply to. See id. at 559 n.1 (Ginsburg, J.,
dissenting) (“The Court purports to declare unconstitutional only the coverage
formula set out in § 4(b). But without that formula, § 5 is immobilized.” (citation
omitted)); Thompson v. Att’y Gen. of Miss., 129 F. Supp. 3d 430, 435 (S.D. Miss.
2015) (three-judge panel) (“[W]ithout a coverage formula, no jurisdictions are
presently covered by § 5’s preclearance requirement.”).
Altogether, there are three takeaways from this examination of the Voting
Rights Act and Shelby County. First, § 5 applies only to covered jurisdictions
under § 4(b). Second, § 5 prohibits those jurisdictions from enacting or
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administering changes in their voting procedures without first obtaining
preclearance. Finally, after Shelby County, there are no covered jurisdictions under
§ 4(b), so § 5’s prohibitions do not apply to any jurisdictions.
B. Post-Shelby County, § 5 Does Not Prohibit Decatur from Implementing the 2010 Referendum Putting these three takeaways together leads to one conclusion: § 5 does not
prohibit or regulate any voting procedure changes after Shelby County. Although
§ 5 may have prohibited covered jurisdictions from altering their voting procedures
without preclearance when § 4(b) was still in force, that is undeniably no longer
the case after Shelby County. Shelby County “stop[ped] any application of § 5 by
holding that § 4(b)’s coverage formula is unconstitutional.” 570 U.S. at 587
(Ginsburg, J., dissenting). So, after Shelby County, formerly covered jurisdictions
may alter their voting procedures without regard to § 5.
Indeed, § 5 places no limits on what laws noncovered jurisdictions may pass
or enforce. Section 5 prevents only covered jurisdictions from enacting and
administering changes to their voting procedures. 52 U.S.C. § 10304(a). It does
not affect noncovered jurisdictions. See Shelby County, 570 U.S. at 550 (“The
provisions of § 5 apply only to those jurisdictions singled out by § 4.”). Further,
the Act expressly allows covered jurisdictions to “bail out” of coverage. See 52
U.S.C. § 10303(a); Nw. Austin, 557 U.S. at 199 (describing the bailout
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requirements). If a jurisdiction successfully bails out, then it is no longer a covered
jurisdiction and thus no longer subject to § 5. At that point, the previously covered
jurisdiction may enact or administer changes to its voting procedures regardless of
what § 5 may have previously required. See Nw. Austin, 557 U.S. at 199, 205–06
(holding that constitutional questions about sections 4 and 5 could be avoided
because a covered jurisdiction that bails out of coverage frees itself from the
restrictions of sections 4 and 5). It logically follows that § 5 does not prohibit
noncovered jurisdictions from enacting or administering laws, whether they are
noncovered because Shelby County invalidated § 4(b)’s coverage formula, because
they have bailed out, or because they were never covered to begin with.
As a result, § 5 is inapplicable to Decatur, a formerly covered jurisdiction,
and does not prohibit Decatur from now altering its voting procedures. And that is
precisely what Voketz seeks—purely prospective relief requiring Defendants to
implement the 2010 referendum going forward. Because Decatur is no longer a
covered jurisdiction under § 4(b)—and thus no longer subject to § 5—§ 5 does not
currently prohibit Decatur from altering its voting procedures. Although § 5 may
have prohibited implementing the referendum without preclearance when it was
originally passed before Shelby County (an issue we do not address here), that
plainly is not the case now that Decatur is no longer a covered jurisdiction. Thus,
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§ 5 cannot prohibit any voting procedure change that Decatur makes now or in the
future.
The only other court to consider this issue reached the same conclusion. In
Thompson v. Attorney General of Mississippi, a three-judge panel denied a
requested preliminary injunction based on a formerly-covered jurisdiction’s
alleged violation of § 5 after Shelby County. 129 F. Supp. 3d 430 (S.D. Miss.
2015). Similar to the facts here, Thompson concerned a Mississippi law that was
passed in 1980 that the plaintiffs alleged could not be enforced after Shelby County
because it never received preclearance. Id. at 435. The court observed that,
although the law would have been unenforceable “before Shelby County,” “[t]he
result of Shelby County is that § 5 cannot be enforced at all.” Id. Accordingly, the
court denied the plaintiff’s request for a preliminary injunction. Id. at 436.
Thompson’s reasoning and holding that § 5 no longer prohibits changes to voting
procedures—even for laws passed while § 5 was still applicable—agrees with our
analysis and conclusion here.
Defendants’ § 5 defense rests entirely on the premise that a law that was
unenforceable under § 5 before Shelby County is unenforceable forever. Section 5,
however, does not invalidate or nullify laws, nor does it mandate that they may
never be administered. Instead, it prohibits covered jurisdictions from “enact[ing]
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or seek[ing] to administer” voting procedure changes without preclearance. See 52
U.S.C. § 10304(a). Section 5 acts as an obstacle to the implementation of any
changes until those changes are precleared. See McCain, 465 U.S. at 245; Clark,
500 U.S. at 652–53. Once a jurisdiction is removed from coverage and § 5 no
longer applies, the obstacle is removed, and the jurisdiction may freely implement
its desired changes.
Defendants concede as much. At oral argument, Defendants acknowledged
that if this lawsuit were reversed—if Defendants had decided to implement the
2010 referendum and Voketz sued to stop it—§ 5 would pose no obstacle. Indeed,
this is precisely what Thompson held. And we can see no reason why the outcome
should be different here. Decatur was free the moment Shelby County was decided
to either enact a new law duplicating the referendum or to simply administer the
original. See Thompson, 129 F. Supp. 3d at 435 (“[F]ormerly covered states may
now immediately ‘enact or seek to administer’ voting laws, practices, and
procedures without having to await review by the Department of Justice.”
(footnote omitted)). Whether Defendants freely choose to implement the 2010
referendum or they are compelled to do so through this lawsuit, after Shelby
County, neither violates § 5.
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The district court got it right in its original order when it observed that
Voketz was seeking “a prospective-only application of Shelby County” and denied
Defendants’ motion for summary judgment. The district court erred by later
reversing itself and granting summary judgment to Defendants. In doing so, the
district court did not explicitly address how § 5 could, post-Shelby County, prevent
Defendants from implementing the 2010 referendum. Instead the court appears to
have operated from the presumption that § 5 barred implementation unless Shelby
County was retroactive. If Voketz was challenging pre-Shelby County actions
based on Defendants’ failure to implement the referendum, Shelby County’s
retroactivity might be at issue. But this case does not concern retroactivity.
Voketz seeks only prospective declaratory and injunctive relief that requires
Decatur to implement the referendum going forward. Shelby County need not be
retroactive for Voketz to be entitled to such relief.
CONCLUSION
It may be that Section 2 of the Voting Rights Act, the Constitution, or state
law could impose some obstacle that prevents Defendants from implementing the
2010 referendum now. We do not know the answer to that question. What we do
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know is that Section 5 does not stand in the way. The district court’s order
granting summary judgment to Defendants is therefore REVERSED. 4
4 Because we reverse the district court’s order granting summary judgment to Defendants, we do not address Voketz’s alternative argument that the district court abused its discretion by limiting discovery.